New Science Emboldens Long Shot Bid for Dolphin, Whale Rights

Over the last several decades, researchers have shown that many dolphin and whale species are extraordinarily intelligent and social creatures, with complex cultures and rich inner lives. They are, in a word, persons.

Now animal advocates are challenging society to follow science to its logical conclusion and give legal rights to cetaceans. In the next several years, they intend to make their case in a court of law. If they’re successful, a dolphin could conceivably become the first non-human ever considered a legal person.

“The problem so far is that all nonhuman animals are seen as being legal things,” said Steven Wise, an animal law scholar and attorney. “If you’re a legal person, you have the capacity to have rights. That’s the fundamental problem we intend to attack.”

At the trial’s beginning, Somerset was legally considered a thing, not even permitted to speak on his behalf. At its end, he was a person. The case used by Somerset’s lawyers was an inspiration to Wise, and by the end of 2013 the Nonhuman Rights Project plans to file two lawsuits on behalf of individual animals held in captivity in the United States.

To be sure, it will be an underdog’s battle, and might even be called quixotic. “There would be tremendous resistance. People would worry — ‘What are the limits? Is every animal in a zoo going to have a lawyer?'” said Richard Posner, a judge on the 7th U.S. Circuit Court of Appeals. “In the foreseeable future it wouldn’t have traction.”

Whether the Nonhuman Rights Project’s first case will involve a cetacean is yet to be determined. If personhood is defined by character rather than chromosomes, many creatures would be eligible: Great apes are intelligent, empathic and emotional, as are elephants. But perhaps the most vocal support exists for cetaceans.

“We have all the evidence to show that there is an egregious mismatch between who cetaceans are and how they are perceived and still treated by our species,” said evolutionary neurobiologist Lori Marino of Emory University during a February meeting of the American Association for the Advancement of Science. “These characteristics make it ethically inconsistent to deny the basic rights of cetaceans.”

"Some court could just say, 'Humans are special,' but there's no rational reason for it."

At a purely neuroanatomical level, their brains are as complex as our own. Their brains are also big — and not simply because cetaceans are large. Dolphins and whales have brains that are exceptional for their size, second only to modern humans in being larger than one would expect. They also possess neurological structures that, in humans, are linked to high-level social and intellectual function.

If all we knew of cetaceans was their brains, we’d probably expect them to be persons, but of course scientists know much more. Tests in captivity have returned evidence of symbolic understanding and abstract reasoning. They seem to be just as aware of themselves as selves as we are, and observations in the wild are even more compelling.

Orcas, dolphins, humpback whales and sperm whales — and almost certainly other as-yet-unstudied species — have rich social lives, vocal dialects comparable to language, and genuine cultures. They don’t live by instinct alone, but in cultures passed between generations, with group-specific differences in habit and lifestyle, in rituals of greeting and death.

Researchers compare differences between cetacean populations to differences between traditional human tribes. It’s even possible to imagine that cetaceans, some of whom live as long as humans and spend their entire lives with a single family, have social sensitivities as pronounced as our own.

Two years ago, advocates led by the Whale and Dolphin Conservation Society drafted what they called the Declaration of Cetacean Rights, formally articulating that “cetaceans as persons have the right to life, liberty and wellbeing.” But it’s one thing to say that creatures should have rights and another for those rights to be legally recognized. As of now, they’re not.

Cetaceans are, like every other non-human animal species, seen by the eyes of the law as objects. And while there are some legal protections for animals, such as animal cruelty laws, they reflect property rights and community proprieties rather than genuine rights.

“If you’re a human being, and the only thing protecting you is a statute saying you can’t be unnecessarily cruel to humans, you wouldn’t feel very protected,” said Wise. “To have the kind of protections that even approach the protections a normal human has, you need to be a legal person.”

Southern resident orcas gather for a greeting ceremony, practiced when pods encounter each other after a long hiatus. Photo: Guen Jones/The Whale Museum

If the Nonhuman Rights Project does file suit for a cetacean, Wise and company plan to avoid missteps made by other groups who’ve sought legal reform on behalf of whales.

Those suits were well-meaning but misguided, said Wise, who believes the plaintiffs erred in seeking full-blown legal standing, or the right to participate in a lawsuit, rather than starting with the basics of personhood. Once that’s granted, argues Wise, discussion can begin over which rights a non-human person should have.

For example, nobody will argue that SeaWorld’s orcas have a right to free speech or guaranteed medical care — but they could have rights to freedom from imprisonment or captive breeding.

Nonhuman Rights Project volunteers are currently reviewing case law and legal codes from all 50 states, as well the records of judges who might hear their case and be open-minded. Unlike the earlier lawsuits, theirs will be filed in a state court and appeal to common law rights of habeas corpus, or freedom from unlawful detention. In an important legal distinction, common law doesn’t deal with statutes drafted by legislatures or political executives, but is written by judges.

“It’s the law that judges make. They’ve understood, for centuries, that it’s their job to keep common law current with changing experience, changing senses of morality, and changing scientific discoveries,” said Wise. And while having rights acknowledged in principle is quite different than having them respected in practice, at least it would be a start, he said.

Mainstream legal scholars, however, aren’t too optimistic about that start. “I just don’t see the world changing in such a radical way,” said animal attorney Bruce Wagman. “It’s not just opposition, it’s the way we’ve constructed our world. That’s how animals fit into it.”

Richard Epstein, a legal scholar at New York University, was similarly skeptical. “I’m not hostile to protection for animals, but I think what Steve gets wrong is that protection can’t be articulated to rights when you don’t have anybody who is a coherent rights-player,” Epstein said. “You’d have to have a mini-revolution.”

Wise insists that animal personhood won’t require some radical judicial step, just a fair reading of legal precedent and a willingness to consider the notion that intelligence, autonomy and feeling, not taxonomic designation, is what makes beings eligible for legal rights.

“We’re simply telling the judges that, based on how they already understand the common law, a nonhuman animal plaintiff should have the capacity for legal rights,” said Wise. “Some court could just say, ‘Humans are special,’ but there’s no rational reason for it.”

Law professor David Favre of Michigan State University, one of the country’s foremost animal law historians, took the long view. “They do have a chance,” said Favre, “but society has to move in certain directions.”

Favre cited the Institute of Medicine’s recent report on chimpanzee research, which implicitly acknowledged chimp personhood and rights, as an early example of that motion. Legal rights for whales could well become real, “but I don’t know in what time frame,” he said. “Not next year.”

Wise also takes the long view. “The Nonhuman Rights Project is not a case or two. It’s a process,” he said. “If we win, we’ll file our next suit in that jurisdiction. If we lose, we might file in a different jurisdiction. We’ll listen carefully to what judges are saying. We will continue to push and push and push.”

Continued Wise, “We understand the difficulties ahead of us, and what barriers we have to overcome, but you have to begin somewhere. And we intend to win.”

Video: Footage and audio recording of a greeting ceremony. “They get in a long line, and if you’re listening with a hydrophone, it’s lots of whistles and calls. They move together, intermingle and start breaching. We’re subjectively imagining what’s going on here, but it seems to be sharing information,” said Kari Koski, former director of the Whale Museum’s Soundwatch Boater Education Program. “‘Where have you been? How did you do? Did you have new calves?’ It’s a very explosive time, and it’s a ritual that’s Southern Resident-Specific.” (Scott Veirs/Beam Reach)

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